# EUR-Lex - 52013PC0052 - EN

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# 52013PC0052

**Proposal for a COUNCIL DIRECTIVE adapting certain directives in the field of public procurement, by reason of the accession of Croatia /* COM/2013/052 final - 2013/0031 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The proposal for a Council Directive adapting
certain directives in the field of public procurement is necessitated by the
upcoming accession of the Republic of Croatia to the European Union.

The Treaty concerning the accession of the
Republic of Croatia to the European Union[1]
was signed by all Member States of the European Union and the Republic of
Croatia at Brussels on 9 December 2011.

Article 3 (3) of the Treaty of Accession
provides that it shall enter into force on 1 July 2013 provided that all the
instruments of ratification have been deposited before that date.

Article 3(4) of the Treaty of Accession enables
the institutions of the Union to adopt before accession measures referred to,
inter alia, in Article 50 of the Act concerning the conditions of accession of
the Republic of Croatia[2].
These measures shall enter into force only subject to and on the date of the
entry into force of the Treaty of Accession.

Article 50 of the Act of Accession provides that where acts of the institutions adopted prior to
accession require adaptation by reason of accession, and the necessary
adaptations have not been provided for in this Act or its Annexes, the Council
or the Commission (if the original acts were adopted by the Commission) shall
adopt the necessary acts.

Point 2 of the Final Act[3] refers
to the political agreement on a set of adaptations to be adopted by the
institutions which was reached between the Member States and Croatia in the
context of the approval of the Treaty of Accession; the High Contracting
parties of the Treaty of Accession invited the Council and the Commission to
adopt these adaptations before accession in accordance with Article 50 of the
Act of Accession, completed and updated where necessary to take account of the
evolution of the law of the Union.

The present proposal for a Council Directive
covers all European Parliament and Council directives which require technical
adaptation by reason of the accession of Croatia in the field of public
procurement – corresponding to negotiation chapter 5.

This proposal is part of a series of proposals
for Council directives by the Commission to the Council which regroup the
technical adaptations to Council directives as well as to European Parliament
and Council directives corresponding to negotiation chapters into separate
proposals for different Council directives. This structure is designed to
facilitate the transposition of the directives concerned by Member States into
their respective legal orders. The package of proposals for legal acts which
the Commission has transmitted to the Council is composed of this series of
proposals for Council directives on the one hand, as well as of a proposal for
a single Council regulation which covers the relevant European Parliament and
Council regulations and decisions as well as the relevant Council regulations
and decisions on the other hand. This is in line with the approach which was
taken in the past in view of the accession of Bulgaria and Romania[4].

It is foreseen that all the legal acts included
in this package will be published in the Official Journal of the European
Union at the same date.

The present proposal and the other proposals
included in this package will take into account technical adaptations to the acquis
which were published in the Official Journal of the European Union until 1
September 2012. The reasons for this are to provide sufficient time for the
legislative processes involved on the one hand, and for the fulfilment of the ensuing
transposition and notification obligations by Member States as regards
directives on the other hand. Adaptations which may be necessary to the acquis
published in the Official Journal of the European Union after 1 September 2012
will be foreseen in the relevant acts themselves or done at a later stage
through the appropriate procedure. In addition, the Commission intends to
informally provide a list of such legislation to Member States in early July
2013.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

As this proposal is of a purely technical
nature and does not involve any political choices, consultations with
interested parties or impact assessments would not have made sense.

3.           LEGAL ELEMENTS OF THE PROPOSAL

The legal basis for the proposal is Article 50
of the Act concerning the conditions of accession of the Republic of Croatia.

The principles of subsidiarity and
proportionality are fully respected. The action of the Union is necessary under
the principle of subsidiarity (Article 5 (3) TEU) because it concerns technical
adaptations to legal acts which were enacted by the Union. The proposal
respects the principle of proportionality (Article 5 (4) TEU) because it does
not go beyond what is necessary to reach the objective pursued.

4.           BUDGETARY IMPLICATION

The proposal has no Union budgetary
implications.

2013/0031 (NLE)

Proposal for a

COUNCIL DIRECTIVE

adapting certain directives in the field
of public procurement, by reason of the accession of Croatia

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union,

Having regard to the Treaty of Accession of
the Republic of Croatia, and in particular Article 3(4) thereof,

Having regard to the Act of Accession of
the Republic of Croatia, and in particular Article 50 thereof,

Having regard to the proposal from the
Commission,

Whereas:

(1)       Pursuant to Article 50 of
the Act of Accession, where acts of the institutions adopted prior to accession
require adaptation by reason of accession, and the necessary adaptations have
not been provided for in the Act of Accession or its Annexes, the Council,
acting by qualified majority on a proposal from the Commission, shall, to this
end, adopt the necessary acts, if the original act was not adopted by the
Commission.

(2)       The Final Act of the
Conference which drew up the Treaty of Accession indicated that the High
Contracting Parties had reached political agreement on a set of adaptations to
acts adopted by the institutions required by reason of accession and invited
the Council and the Commission to adopt these adaptations before accession,
completed and updated where necessary to take account of the evolution of the
law of the Union.

(3)       Directives 2004/17/EC[5], 2004/18/EC[6] and 2009/81/EC[7] should therefore be amended
accordingly,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directives 2004/17/EC, 2004/18/EC and
2009/81/EC shall be amended as set out in the Annex.

Article 2

1.           Member States shall adopt
and publish, by the date of accession of the Republic of Croatia to the
European Union at the latest, the laws, regulations and administrative
provisions necessary to comply with this Directive. They shall forthwith
communicate to the Commission the text of those provisions.

They shall apply those provisions from the date
of accession of the Republic of Croatia to the European Union.

When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.

2.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.

Article 3

This Directive shall enter into force
subject to, and as from the date of the entry into force of the Treaty of
Accession of the Republic of Croatia.

Article 4

This Directive is addressed to the Member
States.

Done at Brussels,

For
the Council

The
President

ANNEX

PUBLIC PROCUREMENT

1.           32004
L 0017: Directive 2004/17/EC of the European Parliament and of the
Council of 31 March 2004 coordinating the procurement procedures of
entities operating in the water, energy, transport and postal services sectors
(OJ L 134, 30.4.2004, p. 1):

(a)
the following is inserted in Annex I
'Contracting entities in the sectors of transport or distribution of gas or
heat' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette No. 90/11)
which, in accordance with special regulations, engage in the activity of
construction (provision) or operation of fixed networks intended to provide
service to the public in connection with the
production, transmission and distribution of gas and thermal energy and supply
of gas or thermal energy to fixed networks, such as the entities engaging in the said activities based
on the Licence for carrying out energy activities in accordance with the Energy
Act (Official Gazette 120/12).’

(b)
the following is inserted in Annex II
'Contracting entities in the sectors of production, transport or distribution
of electricity' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette
No. 90/11) which, in accordance with special regulations, engage in the
activity of construction (provision) or operation of fixed networks intended to
provide service to the public in connection with the production, transmission
and distribution of electricity and supply of electricity to fixed networks, such as the entities engaging in the said
activities based on the Licence for carrying out energy activities in accordance
with the Energy Act (Official Gazette 120/12).'

(c)
the following is inserted in Annex III
'Contracting entities in the sectors of production, transport or distribution
of drinking water' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette
No. 90/11) which, in accordance with special regulations, engage in the
activity of construction (provision) or operation of fixed networks intended to
provide service to the public in connection with the production, transmission
and distribution of drinking water and supply of drinking water to fixed
networks, such
as the entities established by the local self-government units acting as the
public supplier of water supply services or drainage services in accordance
with the Waters Act (Official Gazette 153/09 and 130/11).'

(d)
the following is inserted in Annex IV
'Contracting entities in the field of rail services' after the entry for
France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette
No. 90/11) which, in accordance with special regulations, engage in the
activity of provision or operation of the networks providing service to the
public in the field of railway transport.'

(e)
the following is inserted in Annex V
'Contracting entities in the field of urban railway, tramway, trolleybus or bus
services' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette
No. 90/11) which, in accordance with special regulations, engage in the
activity of provision or operation of the networks providing service to the
public in the field of urban railway, automated systems, tramway, bus,
trolleybus and cable car (cableway) transport, such
as the entities engaging in the said activities as a public service in
accordance with the Utilities
Act (Official Gazette 36/95, 70/97, 128/99, 57/00, 129/00, 59/01, 26/03, 82/04,
110/04, 178/04, 38/09, 79/09, 153/09, 49/11, 84/11, 90/11).'

(f)
the following is inserted in Annex VI 'Contracting entities in the postal services
sector' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette No. 90/11)
which, in accordance with special regulations, engage in the activity of
provision of postal services and other services which do not include postal
services under Article 112, paragraph 4 of the Act.'

(g)
the following is inserted in Annex VII 'Contracting entities in the sectors of
exploration for and extraction of oil or gas' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi (Narodne novine broj 90/11) (Public
Procurement Act, Official Gazette No. 90/11) which, in accordance with
special regulations, engage in the activities relating to the exploitation of a
geographical area with the aim of exploring and extracting oil and gas, such as the entities engaging in the said activities in accordance with the Mining Act (Official
Gazette 75/09 and 49/11).'

(h)
the following is inserted in Annex VIII 'Contracting entities in the sectors of
exploration for and extraction of coal and other solid fuels' after the entry
for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette No. 90/11) which, in
accordance with special regulations, engage in the activities relating to the
exploitation of a geographical area with the aim of exploring and extracting
coal and other solid fuels, such as the entities engaging
in the said activities in
accordance with the Mining Act (Official Gazette 75/09 and 49/11).'

(i)
the following is inserted in Annex IX
'Contracting entities in the field of maritime or inland port or other terminal
facilities' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette
No. 90/11) which, in accordance with special regulations, engage in the
activities relating to the exploitation of a geographical area with the aim of
making available sea ports, river ports and other transport terminals to
operators in sea or river transport, such as the
entities engaging in the said activities in accordance with the Maritime Domain and Seaports Act
(Official Gazette 158/03, 100/04, 141/06 and 38/09).'

(j)
the following is inserted in Annex X 'Contracting entities in the field of airport
installations' after the entry for France:

'Croatia

Contracting entities referred to in Article 6
of the Zakon o javnoj nabavi
(Narodne novine broj 90/11) (Public Procurement Act, Official Gazette No. 90/11)
which, in accordance with special regulations, engage in the activities
relating to the exploitation of a geographical area with the aim of making available
airports and other terminal equipment to air transport operators, such as the entities engaging in the said
activities in accordance with the Airports Act (Official Gazette 19/98 and
14/11).'

2.           32004
L 0018: Directive 2004/18/EC of the European Parliament and of the
Council of 31 March 2004 on the coordination of procedures for the award
of public works contracts, public supply contracts and public service contracts
(OJ L 134, 30.4.2004, p. 114):

(a)
the following is inserted in Annex III 'List of bodies and categories of bodies
governed by public law as referred to in the second subparagraph of Article
1(9)' after the entry for France:

'XI - CROATIA

Contracting authorities referred to in Article
5, paragraph 1, item 3 of the Zakon
o javnoj nabavi (Narodne novine broj 90/11) (Public Procurement Act, Official Gazette No. 90/11),
i.e. legal persons established for the specific purpose
of meeting needs in the general interest, not having an industrial or
commercial character and which meet one of the following conditions:

–
they are financed from the State Budget or the
budget of local or the budget of regional self-government unit or other such
legal persons in more than 50%, or

–
they are subject to management supervision by
state bodies, local and regional self-government units or other such legal, or

–
they have supervisory board, an administrative
or managerial board, more than half of whose members are appointed by the state
bodies, local and regional self-government units or other such legal persons.

For example:

– Agency Alan d.o.o.;

– APIS IT d.o.o –
Information Systems and Information Technologies Support Agency;

– National Folk Dance Ensemble of Croatia “Lado”;

– Autocesta Rijeka – Zagreb
d.d. (Rijeka – Zagreb Motorway);

– CARnet (Croatian Academic
and Research Network);

– Help and care centres;

– Social welfare centres;

– Social care homes;

– Health care centres;

– State archives;

– State Institute for
Nature Protection;

– Fund
for Financing the Decommissioning of the Krško Nuclear Power Plant and the Disposal
of NEK Radioactive Waste and Spent Nuclear Fuel;

– Fund for Indemnification
of Seized Property;

– Fund for Reconstruction
and Development of Vukovar;

– Fund for Professional
Rehabilitation and Employment of People with Disabilities;

– Environmental Protection and Energy
Efficiency Fund;

– Croatian Academy of Science and Arts;

– Croatian Bank for Reconstruction and
Development;

– Hrvatska kontrola zračne plovidbe d.o.o.
(Croatia Control Ltd.);

– Hrvatska lutrija d.o.o. (Croatian Lottery);

– Croatian Heritage Foundation;

– Croatian Chamber of Agriculture;

– Croatian Radio Television;

– Croatian Association of Technological
Culture;

– Hrvatske autoceste d.o.o. (Croatian Motorways
Ltd.);

– Hrvatske ceste d.o.o. (Croatian Roads Ltd.);

– Hrvatske šume d.o.o. (Croatian Forests);

– Hrvatske vode (Croatian water management
company);

– Croatian Audiovisual Centre;

– Croatian Centre for Horse Breeding – State Stud
Farms Đakovo and Lipik;

– Croatian Centre for Agriculture, Food and
Rural Affairs;

– Croatian Mine Action Centre;

– Croatian Memorial-Documentation Centre of the
Homeland War;

– Croatian Olympic Committee;

– Croatian Energy Market Operator;

– Croatian Paralympic Committee;

– Croatian Register of Shipping;

– Croatian Conservation Institute;

– Croatian Deaf Sport Federation;

– Croatian Institute of Emergency Medicine;

– Croatian National Institute of Public Health;

– Croatian Institute for Mental Health;

– Croatian Institute for Pension Insurance;

– Croatian Standards Institute;

– Croatian Institute for Telemedicine;

– Croatian Institute for Toxicology and
Anti-doping;

– Croatian
National Institute of Transfusion Medicine;

– Croatian Employment Service;

– Croatian Institute for Health Protection and
Safety at Work;

– Croatian Institute for Health Insurance;

– Croatian Institute for Health Insurance of
Occupational Health;

– Jadrolinija (shipping company);

– Public Institution Croatian Olympic Centre;

– Higher education public institutions;

– National parks public institutions;

– Nature parks public institutions;

– Public scientific institutes;

– Theatres, museums, galleries, libraries and
other institutions in the field of culture established by the Republic of
Croatia or local and regional self-government units;

– Penitentiaries;

– Clinical hospitals;

– Clinical hospital centres;

– Clinics;

– “Miroslav Krleža” Institute of Lexicography;

– Port Authorities;

– Sanatoriums;

– Pharmacies founded by
the units of regional self-government;

– Matica hrvatska (Matrix Croatia);

– International Centre for Underwater
Archaeology;

– National and University Library;

– National Foundation for Support to the Pupil
and Student Standard of Living;

– National Foundation for Civil Society
Development;

– National Foundation for Science, Higher
Education and Technological Development of the Republic of Croatia;

– National Centre for External Evaluation of
Education;

– National Council for Higher Education;

– National Council for Science;

– Official Gazette (Narodne novine d.d.);

– educational/correctional institutes;

– Educational institutions founded by the
Republic of Croatia or units of local and regional

self-government;

– General hospitals;

– Plovput d.o.o. (State-owned company in charge
of safety of navigation);

– Polyclinics;

– Special hospitals;

– Central Register of Insured Persons;

– University Computing Centre;

– Sports associations;

– Sports federations;

– Emergency medical treatment institutions;

– Palliative care institutions;

– Health care institutions;

– Foundation of Police Solidarity;

– Prisons;

– Institute for the Restoration of Dubrovnik;

– Institute for Seed and Seedlings;

– Public health institutes;

– Aeronautical Technical Centre (Zrakoplovno –
tehnički centar d.d.);

– County road administrations.

(b)
The following is inserted in Annex IV 'Central government authorities' after the
entry for France:

'CROATIA

1. State bodies of the Republic of Croatia:

– Croatian Parliament;

– President of the Republic of Croatia;

– Office of the President of the Republic of
Croatia;

– Office of the President of the Republic of
Croatia after the expiry of the term of office;

– Government of the of the Republic of Croatia;

– Offices of the Government of the Republic of
Croatia;

– Ministries;

– state offices;

– state administrative organisations;

– County state administration offices;

– Constitutional Court of the Republic of
Croatia;

– Supreme Court of the Republic of Croatia;

– Courts;

– State Judiciary Council;

– State attorney’s offices;

– State Prosecutor’s Council;

– Ombudsman’s offices;

– State Commission for the Supervision of
Public Procurement Procedures;

– Croatian National Bank;

– State Audit Office;

2. State agencies and offices:

– Croatian Civil Aviation Agency;

– Electronic Media Agency;

– Aircraft Accident and Incident Investigation
Agency;

– Agency for Public Private Partnership;

– Agency for Quality and Accreditation
in Healthcare;

– Agency for Medicinal Products and Medical
Devices;

– Agency for Mobility and EU Programmes;

– Agency for Coastal Lines and Maritime Traffic;

– Agency for the Reconstruction of Fort
Tvrđa in Osijek;

– Education and Teacher Training Agency;

– Pressure Equipment Agency;

– Agency for Insurance of Workers' Claims in
Case of Employer's Bankruptcy;

– Paying Agency for Agriculture, Fisheries
and Rural Development;

– Agricultural Land Agency;

– Agency for Transactions and Mediation in Immovable Properties;

– Agency for Explosive Atmosphere Hazardous
Areas;

– Agency for Regional Development of the
Republic of Croatia;

– Railway Market Regulatory Agency;

– Agency
for the Audit of European Union Programmes Implementation System;

– Railway Transport Safety Agency;

– Agency
for Vocational Education and Training and Adult Education;

– Agency for State Property Management;

– Agency for Inland Waterways;

– Croatian Environment Agency;

– Personal
Data Protection Agency;

– Croatian Competition Agency;

– Agency for Science and Higher Education;

– State Agency for Deposit Insurance and Bank
Rehabilitation;

– Financial Agency;

– Croatian Food Agency;

– Croatian Agency for Small Business;

– Croatian Financial Services Supervisory
Agency;

– Croatian
Compulsory Oil Stocks Agency;

– Croatian
Post and Electronic Communications Agency;

– Croatian Accreditation Agency;

– Croatian Energy Regulatory Agency;

– Croatian News Agency;

– Croatian Agricultural Agency;

– Central Finance and Contracting Agency.

(c)
The following is inserted in Annex IX A 'PUBLIC WORKS CONTRACTS' after the entry
for France:

'- in Croatia, "Sudski registar trgovačkih
društava u Republici Hrvatskoj or Obrtni registar Republike Hrvatske";'

(d)
The following is inserted in Annex IX B 'PUBLIC SUPPLY CONTRACTS' after the entry
for France:

'- in Croatia, "Sudski registar trgovačkih
društava u Republici Hrvatskoj or Obrtni registar Republike Hrvatske";'

(e)
The following is inserted in Annex IX C 'PUBLIC SERVICE CONTRACTS' after the entry
for France:

'- in Croatia, "Sudski registar trgovačkih
društava u Republici Hrvatskoj or Obrtni registar Republike Hrvatske";'

3.           32009 L 0081:
Directive 2009/81/EC of the European Parliament and of the Council of 13 July
2009 on the coordination of procedures for the award of certain works
contracts, supply contracts and service contracts by contracting authorities or
entities in the fields of defence and security and amending Directives
2004/17/EC and 2004/18/EC (OJ L 216, 20.8.2009, p. 76):

(a)
The following is inserted in Annex VII Part A 'WORKS CONTRACTS' after the entry for
France:

'- in Croatia, "Sudski registar trgovačkih društava
u Republici Hrvatskoj or Obrtni registar Republike Hrvatske";'

(b)
The following is inserted in Annex VII Part B 'SUPPLY CONTRACTS' after the entry for
France:

'- in Croatia, "Sudski registar trgovačkih
društava u Republici Hrvatskoj or Obrtni registar Republike Hrvatske";'

(c)
The following is inserted in Annex VII Part C ' SERVICE CONTRACTS' after the entry for
France:

'- in Croatia, "Sudski registar trgovačkih
društava u Republici Hrvatskoj or Obrtni registar Republike Hrvatske";'.

[1]               OJ L 112, 24.4.2012, p. 10.

[2]               OJ L 112, 24.4.2012, p. 21.

[3]               OJ L 112, 24.4.2012, p. 95.

[4]               OJ L 363, 20.12.2006, p. 1.

[5]               OJ L 134, 30.4.2004, p. 1.

[6]               OJ L 134, 30.4.2004, p. 114

[7]               OJ L 216, 20.8.2009, p. 76.